Mayor and City Council of Baltimore v. Hart

DAVIS, Judge. On August 20, 2003, Michael Lee Hart, appellee, filed a complaint in the Circuit Court for Baltimore City against the Mayor and City Council of Baltimore, appellant, and Allstate Insurance Company 1 for injuries suffered as a result of an accident on February 16, 2002, involving a Baltimore City police cruiser. On January 14, 2005, appellant filed a motion in limine to prevent appellee from introducing Baltimore Police Department General Order No. 11-90 (General Order 11-90). On March 2, 2005, following a hearing, the court denied appellant’s motion.

The case proceeded to trial on March 30, 2005 (Themelis, J., presiding), where appellee was permitted to introduce evidence of General Order 11-90, over appellant’s objection. On March 31, 2005, at the conclusion of the presentation of the evidence, the trial court included an instruction regarding General Order 11-90. The jury returned a verdict in favor of appellee, awarding damages in the amount of $46,894.05. The portion of the judgment entered against appellant is $20,000, representing the maximum recovery possible.

The remainder of the judgment, $26,894.05 was entered against Allstate In ¹¹⁰ surance Company. Appellant appeals presenting two questions for our review. 1. Did the lower court err when instructing the jury by including an instruction based on Baltimore Police Department General Order 11-90? 2. Did the lower court err in denying [appellant’s] motion in limine to preclude [appellee] from introducing evidence of Baltimore Police Department General Order 11-90?

FACTUAL BACKGROUND On February 16, 2002, appellee and Officer Mark V. Greff, a Baltimore City Police Officer, were involved in a motor vehicle collision at the intersection of Madison and Wolf Streets in Baltimore City. The intersection of Madison and Wolf Streets is controlled by a traffic signal. Appellee testified that, as he was headed westbound on Madison Street, he stopped for a traffic light at Madison Street and Washington Avenue; thereafter, appellee proceeded on Madison Street to the intersection of Madison and Wolf. Appellee stated that, as he approached the light at the intersection of Madison and Wolf Streets, it turned green for westbound vehicles.

He proceeded through the intersection and, at that time, his van was struck by the police cruiser, driven by Officer Greff. Appel-lee’s testimony was that he never heard a police siren. He also did not see any police lights prior to entering the intersection. Three witnesses, other than appellee and Officer Greff, testified at the hearing.

Gregory Ware was in a vehicle on Wolf Street, approximately a city block away from the accident, traveling in the same direction as the officer when he witnessed the accident. Ware testified that Officer Greff had the police lights on as he approached the intersection, but he only heard the siren intermittently, describing the sound as “the little boop, boop, boop.” Ware’s signed statement from the morning of the accident indicates that Officer Greffs lights and siren were activated. Ware testified that his statement ¹¹¹ indicating that Officer Greffs siren was activated was incorrect. Ware then refused to authenticate the statement.

He also stated that Officer Greffs brake lights were activated, but he did not see the Officer come to a complete stop at the intersection. Ware recalled that the traffic signal controlling the direction of the Officer was red. At the time of the accident, Jerry Perkins was operating a vehicle directly behind appellee’s vehicle on Madison Street. He confirmed that, as he and appellee approached the intersection, the traffic signal turned green.

Perkins was driving with his windows slightly open. His testimony, consistent with that of other witnesses, was that the Officer’s cruiser entered the intersection and struck appellee’s van. Perkins did not recall seeing the police vehicle emergency lights flashing or hearing the siren prior to the accident; he testified, however, that he noticed the police lights were on after the accident and he could hear a faint siren. He was not able to state, with certainty, whether the lights were turned on prior to or following the accident.

Officer Charles Reickel, one of the officers assigned to investigate the accident, also testified at trial, principally to introduce the statement of Gregory Ware into evidence. Officer Reickel authenticated Ware’s statement, testifying that he wrote the facts contained in the statement, but Ware then read and signed the statement. He further explained that, if Ware had indicated Officer Greff “chirped” his siren, it would have been entered that way on the report. The report as written, according to Officer Reickel, reflects that the siren was on continuously.

At the time of the accident, Officer Greff was responding to a police emergency, involving another officer struggling with a suspect on Monument Street. Officer Greff testified that he responded to the emergency with the lights and siren on. As he approached the intersection of Madison and Wolf Streets, he slowed his vehicle to clear the intersection, then proceeded through the intersection once it was cleared of vehicles. He stated that he proceeded through the intersection under the ¹¹² impression, however mistakenly, that all vehicles including appellee’s van had yielded to his vehicle.

Officer Greff did not recall the color of the traffic signal as he approached the intersection, but testified that he was trained to slow down his vehicle at both green and red lights and clear the intersection because pedestrians do not always follow the traffic signals. When asked during direct examination if he was aware of General Order 11-90, Officer Greff stated that he was not aware of that specific General Order, but was aware that there are General Orders issued by the Commissioner. On cross-examination, Officer Greff was handed a copy of General Order 11-90, and was still not able to say whether he had ever seen it. General Order 11-90 is titled “Departmental Emergency Vehicle Operation.” It states the following, in pertinent part: POLICY Members of this Department shall operate departmental vehicles with utmost care and caution, comply with all traffic laws and SHALL NOT BECOME ENGAGED IN HIGH-SPEED PURSUIT DRIVING, except under EXIGENT circumstances.

Exigent circumstances consist of: Instances where the officer determines that immediate action is necessary; and Insufficient time exists to resort to other alternatives; and Failure to pursue may result in grave injury or death. The Department recognizes it is better to allow a criminal to temporarily escape apprehension than to jeopardize the safety of citizens and its officers in a high speed pursuit. General The City of Baltimore is a highly congested urban area which necessitates driving a motor vehicles [sic] in a safe manner. In order for a departmental vehicle to be considered operating in an EMERGENCY MODE, BOTH ROOF MOUNTED EMERGENCY LIGHTS AND ELECTRIC SIREN MUST BE ACTIVATED....

RESPONSIBILITIES ¹¹³ 4. When assigned as Primary and Secondary Units for dispatched calls and responding in an emergency mode: a. SLOW DOWN AT ALL INTERSECTIONS, ensure the intersection is safe to enter and then proceed cautiously. b. When crossing against any traffic control device, BRING YOUR VEHICLE TO A FULL STOP and ensure the intersection is safe to enter before proceeding. c.

Ensure that your VEHICLE SPEED IS BOTH SAFE AND REASONABLE under the prevailing roadway and environmental conditions. COMMUNICATION OF DIRECTIVE Commanding officers and supervisors shall communicate the contents of this directive to their subordinates and ensure compliance. This directive is effective on the date of publication. On March 2, 2005, the court held a hearing on appellant’s motion in limine to preclude evidence of General Order 11-90.

Appellant, relying on Richardson v. McGriff, 361 Md. 437 , 762 A.2d 48 (2000), argued that Baltimore Police Department General Order 11-90 is irrelevant, and use of the General Order would allow appellee to mislead the jury in its determination of whether the officer violated the relevant duty of care. Additionally, appellant argues that Md.Code (2002 Repl.Vol, 2005 Supp.), § 21-106(b)(2) entitled the officer to “[p]ass a red or stop signal, a stop sign, or a yield sign, but only after slowing down as necessary for safety,” and the Baltimore City Police Commissioner cannot usurp that privilege. In his response to appellant’s motion, appellee argues that McGriff, mpra, is distinguishable; insofar as McGriff was a police brutality case, where the Court of Appeals precluded the use of the guidelines because they were not relevant, ¹¹⁴ subject to interpretation, and required the officer to exercise his/her discretion. In the case sub judice, appellee contends General Order 11-90 is specific, the rules articulated therein do not require the exercise of discretion, and the rules are relevant to the facts of the case.

Appellee also argued that the police Commissioner may adopt an enhanced duty of care, officers must follow those orders, and they are subject to sanctions for not following orders. The court denied the motion in limine, stating, “there’s nothing in the rules of the game that says when a statute is more general that a local jurisdiction can’t make stricter rules. They can’t make more liberal rules, but they can make stricter rules, and that’s what they’ve done here and so the motion in limine is denied.” LEGAL ANALYSIS I. MOTION IN LIMINE We address appellant’s claims of error out of order because, as we see it, we must first decide if the trial court erred in denying the motion in limine, in which appellant sought to preclude the admission of General Order 11-90. The Code of Public Laws of Baltimore City vests in the Police Commissioner for Baltimore City (Commissioner) the authority to promulgate rules and regulations incident to the management of the department.

Specifically, Code of Public Laws of Baltimore City § 16-7 reads: In directing and supervising the operations and affairs of the Department, the Commissioner shall, subject to the provisions of this subtitle, ..., be vested with all the powers, rights and privileges attending the responsibility of management, and may exercise the same, where appropriate, by rule, regulation, order or other departmental directive which shall be binding on all members of the Department when duly promulgated. Section 16-7 continues: The authority herein vested in the Police Commissioner shall specifically include, but not be limited to, the following: ¹¹⁵ (8) To regulate attendance, conduct, training, discipline and procedure for all members of the Department and to make all other rules, regulations and orders as may be necessary for the good government of the Department and of its members. Pursuant to the authority granted by section 16-7, the Commissioner issued General Order 11-90, which we have set forth, supra. Appellant argues that the rules are discretionary and, as such, are not laws and therefore, should not be admissible as evidence of its negligence.

Relying principally on the Court of Appeals’ decision in Richardson v. McGriff, 361 Md. 437 , 762 A.2d 48 (2000), appellant asserts that the circumstances immediately preceding the accident are the only relevant information for the jury’s consideration in deciding the reasonableness of Officer Greffs actions. McGriff involved the Court’s consideration of a claim of excessive force. 361 Md. at 444-45 , 762 A.2d 48 . The petitioner, Richardson, was one of a group of juveniles who broke into a vacant apartment at 9:00 in the evening. Id. at 441 , 762 A.2d 48 .

One of the juveniles noticed the police outside the apartment and the group panicked causing Richardson and three of his friends to hide in a closet in the kitchen area. Id. at 442 , 762 A.2d 48 . Richardson carried with him, into the closet, a vacuum cleaner pipe, with which he previously had been playing. Id.

The break-in was reported to the police and Officer McGriff received the call about 10:00. Id. He arrived at the scene, observing that a vacant apartment door was ajar and the apartment was dark. Id.

After calling for backup, Officer Catterton arrived and the two began searching the apartments. Id. at 442-43 , 762 A.2d 48 . Significantly, when the call was made, the dispatcher included that shots had been fired at the apartment. Id. at 442 , 762 A.2d 48 .

The Officers began by searching an upstairs apartment, and then proceeded down to the terrace level to search the apartment in which Richardson was hiding. Id. at 442-43 , 762 A.2d 48 . The officers entered the darkened apartment, but did not ¹¹⁶ turn on the lights. Id. at 443 ,. 762 A.2d 48 .

They proceeded to conduct a room-by-room search and, upon hearing a bump in the kitchen, entered that room. Id. at 443-44 , 762 A.2d 48 . The officers had announced their presence upon entering the apartment and their intention to open the closet door, prior to doing so. Id.

Officer McGriff positioned himself, with the flashlight and his weapon drawn, where he could see in the closet once the door was opened. Id. at 444 , 762 A.2d 48 . Officer Catterton positioned himself out of the line of fire, where he could open the door. Id.

Once the door was opened, Officer McGriff saw what he believed to be a weapon being lowered into the firing position and shot Richardson. Id. Richardson filed claims for battery, gross negligence, and violation of his rights under Article 26 of the Maryland Declaration of Rights. Id. at 441 , 762 A.2d 48 .

Officer McGriff defended, claiming he acted in self-defense, which brought into question the reasonableness of his use of deadly force. Id. at 440 , 762 A.2d 48 . The Court of Appeals explained that the common issue regarding all three of Richardson’s claims required consideration of whether Officer McGriff acted reasonably when the closet door was opened and he saw what he believed to be an armed man about to fire at him. Id. at 445 , 762 A.2d 48 .

To support his claims, Richardson sought the introduction of certain guidelines and regulations of the Baltimore City Police Department. Id. at 445 , 762 A.2d 48 . Officer McGriff filed a motion in limine seeking to exclude the admission of the guidelines, which the trial court granted on relevance grounds. Id. at 448 , 762 A.2d 48 .

The Court provided a description of the excluded police guidelines, stating: The documentary evidence sought to be excluded consisted of nine pages of single-spaced guidelines issued by the Baltimore City Police Department on the use of deadly force and 13 pages of single-spaced rules and regulations concerning a wide range of police conduct and behavior. Most of the rules and regulations, which cover the entire gamut of police conduct, from being courteous and fulfilling ¹¹⁷ financial obligations, to saluting superior officers, to refraining from publicly criticizing public officials, to the circumstances when gambling, drinking, and smoking is not permitted, have no discernible relevance to any issue in the case. Even the guidelines on the use of deadly force included standards dealing with matters wholly inapposite to this case — guidelines on shooting at vehicles, shooting from vehicles, killing dangerous animals, and chasing suspects. The rules and regulation relating to firearms require police officers to be suitably armed when on duty and, although they place conditions on the use of firearms to prevent the escape of felons and prohibit their use to prevent the escape of misdemeanants, they expressly permit officers to use their firearms in self-defense.

The guidelines dealing with deadly force that [Richardson] particularly stressed provide, in pertinent part, that officers may use deadly force “only as a last resort,” they “should try to avoid putting themselves in the situation where they have no option but to use deadly force,” that they should “[t]ry to use other less deadly means,” and that they should “[w]ait for [a] sufficient number of officers to handle situation^] without undue force.” Consistent with the rules and regulations, the guidelines expressly allow the use of firearms in self-defense and state that “[t]he attacked officer is the person who has to evaluate the potential seriousness of the attack and determine an appropriate level of response,” the only caveat being that “[t]he evaluation and response must be reasonable from the perspective of a reasonable police officer similarly situated.” McGriff, 361 Md. at 446-47 , 762 A.2d 48 . The Court of Appeals, in McGriff, adopted the holding of the Supreme Court in Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), and explained that: [T]he Supreme Court held “that an ‘excessive force’ claim against police officers under 42 U.S.C. § 1983 is to be judged under Fourth Amendment jurisprudence, rather than under notions of substantive due process. The inquiry thus focuses on the objective reasonableness of the officer’s ¹¹⁸ conduct. Because, the [Supreme] Court held, the test of reasonableness ‘is not capable of precise definition or mechanical application,’ its proper application ‘requires careful attention to the facts and circumstances of each particular case.’ ” McGriff, 361 Md. at 452 , 762 A.2d 48 (citing Connor, 490 U.S. at 396 , 109 S.Ct. at 1872 , quoting in part from Bell v. Wolfish, 441 U.S. 520, 559 , 99 S.Ct. 1861, 1884 , 60 L.Ed.2d 447 (1979)). “The ‘reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight....” Id.

(citing Connor, 490 U.S. at 396-97 , 109 S.Ct. at 1872 ). The question, the Court stated, is “one of permissible focus: is the jury limited to considering only the circumstances contemporaneous with the ‘seizure’ — what immediately faced McGriff when the closet was opened — or was it entitled to consider as well the reasonableness of the officer’s antecedent conduct?” Id. at 452 , 762 A.2d 48 . The Court concluded that the reasonableness of an officer’s use of deadly force should be determined by examining the circumstances at the moment or moments directly preceding the use of deadly force. McGriff, 361 Md. at 458 , 762 A.2d 48 .

In demonstrating that Police Guidelines simply did not support petitioner’s theory of the case, Judge Wilner, writing for the majority, reasoned: Noting the statement that deadly force should be used only as a last resort, petitioner urged that he be permitted to elicit from McGriff his acceptance of that proposition and “that he doesn’t just go in, like a cowboy, and shoot first and ask questions later.” There was, of course, no evidence that McGriff did any such thing. Petitioner also said that he wanted to cross-examine McGriff about the admonition to “wait for a sufficient number of officers to handle situations without undue force.” At no time during the hearing, however, did petitioner suggest that he was prepared to offer any evidence (1) that additional back-up was immediately available, (2) how much back-up would have been reasonable in light of the officers’ previous experience and ¹¹⁹ what they had been told was the situation, (3) whether, given the prospect of there being a victim in the building, it would have been reasonable for the two officers to wait, or (4) how the situation in the kitchen would have played out any differently if additional officers had joined the search of the house. The court granted the motion on relevance grounds, noting that there were no allegations in the complaint that the suit was based on a violation of any police orders, regulations, or guidelines. Petitioner does not really suggest otherwise.

None of the actions pled, and certainly none that were submitted to the jury, were based on the violation of any orders, regulations, or guidelines. Instead, at least as the argument unfolded in this Court, petitioner was seeking to use this material only as a basis for claiming that Officers McGriff and Catterton should not have entered the apartment in the first place, without some undefined additional back-up, or, once there, they should have turned on the kitchen lights. The excluded evidence was thus relevant, if at all, only in those regards. Id. at 448 , 762 A.2d 48 .

The Court ultimately determined, with respect to the issue of relevance: The Jury might, perhaps, question the immediate decision by Officer McGriff to fire his gun when the closet door was opened, but it would have been sheer hindsight speculation to find that it was unreasonable, by reason of any police guideline or regulation cited by [Richardson], for the two officers to enter the building and search it. On this record, the admonition in the guidelines to ‘[w]ait for [a] sufficient number of officers to handle situation[s] without undue force’... had utterly no relevance; nor, through an expansive jury instruction, could the jury be allowed to speculate that Officers McGriff and Catterton should not have entered the building. Id. at 458 , 762 A.2d 48 . Preliminarily, we note that the instant case does not involve any allegation of excessive force by a police officer and, ¹²⁰ therefore, does not require an analysis of Officer Greffs conduct under the Fourth Amendment jurisprudence announced by the United States Supreme Court in Connor, supra.

Appellee has not made any claims that he was seized in violation of either his Fourth Amendment rights under the United States Constitution, or his rights under Article 26 of the Maryland Declaration of Rights. On that factual basis alone, McGriff is inapposite to appellant’s position, insofar as appellee filed claims for simple negligence on the part of appellant. The Court’s decision, in McGriff , was specific to claims involving use of force by a police officer, where the antecedent conduct of an officer, prior to the moment of seizure, is not appropriate for consideration, because that would amount to hindsight speculation. The Court, in rejecting respondent’s position, determined that the guidelines offered by Richardson were broad, encompassing police conduct and behavior, which was not at all relevant to the issues.

McGriff, 361 Md. at 446 , 762 A.2d 48 . That cannot be said of General Order 11-90, which covers Departmental Emergency Vehicle Operation. Additionally, the guidelines in McGriff were indeed discretionary, see Id. at 447 , 762 A.2d 48 , supra, providing “the attacked officer is the person who has to evaluate the potential seriousness of the attack and determine an appropriate level of response.” The specific sections of General Order 11-90 to which we alluded, supra, leave little, if any discretion to the officer operating an emergency vehicle. Moreover, the Court in McGriff did not announce a per se rule excluding police department guidelines from consideration in all circumstances.

The Court held that the guidelines at issue in McGriff were not admissible on relevance grounds, in that use of the guidelines would have permitted the jury to evaluate the reasonableness of the officer’s antecedent conduct — the decision to enter the building, the decision to leave the lights off, and the decision not to wait for more officers— none of which is proper for consideration in evaluating the officer’s conduct in the